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 Inasmuch as there is little or nothing that any one has been actually deceived, but in the case to indicate how much of this fund need only show that the marks, words, or other ought to be expended annually at the present special arrangement of a rival manufacturer are
such as will likely mislead persons in the orditime or in the near future for the benefit of nary course of purchasing goods and inducing the minors, it will be necessary to refer the them to suppose that they are purchasing the matter to a master to inquire what amount article of the manufacturer. should be periodically transferred for the and Trade-Names, Cent. Dig. '§ 86; Dec. Dig. $
[Ed. Note.--For other cases, see Trade Marks purpose by the trustees to the general guard- 75.*] ians. Such an inquiry was made in the case 5. TRADE-MARKS AND TRADE-NAMES ($ 16*)— of McKnight v. Walsh, 24 N. J. Eq. 498. UNFAIR COMPETITION-ELEMENTS.
 The principle is in cases of this class A paper carton constructed by superimposthat the amount to be paid for the mainte-ing on the cardboard carton blank a sheet of
waxed paper of the size and shape of the blank, nance, support, and education of the minors so that, when folded, it will form a unit box and should be limited to the actual necessities of possess the capacity of preserving the contents the situation, and, if there is any surplus, it equally with hermetically sealed tin boxes, and should be accumulated by the trustees for the bundle packages, may not be exclusively appro
priated by a manufacturer as devised to mark benefit of the cestui que trusts until they and indicate its product, but a rival manufacarrive at the age when they may control turer may use similar cartons and bundle packtheir own funds.
ages without being guilty of unfair competition. There are some discrepant cross-references
[Ed. Note.-For other cases, see Trade-Marks
and Trade-Names, Cent. Dig. 19; Dec. Dig. 8 from one paragraph to another in several
16.*] places in the will; but, inasmuch as counsel 6. TRADE-MARKS AND TRADE-NAMES ($ 97*)have agreed in relation thereto, it is unnec UNFAIR COMPETITION-ELEMENTS. essary that any mention should be made Where a manufacturer of bakery products thereof at the present time.
has adopted for its products paper cartons of various sizes and trade-marks placed on each
end thereof and trade-names, such as "Uneeda (83 N. J. Eq. 389)
Biscuit,” “Uneeda Milk Biscuit," "Oysterettes,"
“Marshmallow Dainties," "Cocoanut Dainties,” NATIONAL BISCUIT CO. V. PACIFIC "Oatmeal Crackers," etc., a rival manufacturer COAST BISCUIT CO. et al.
will be restrained from adopting any seal on its
cartons or trade-names which are calculated to (Court of Chancery of New Jersey. June 4, deceive the purchasing public, but it will not be 1914.)
restrained from selling such cartons with their 1. TRADE-MARKS AND TRADE-NAMES (8 67*)— asserted trade-mark thereon so differentiated in UNFAIR COMPETITION-ELEMENTS.
general appearance and application from the One may not palm off his goods as the manufacturer's trade-mark that it could not degoods of a rival and thereby cheat the purchas-ceive the ordinary purchaser, nor will the rival ing public and injure the business of the rival. manufacturer be restrained from selling cartons
[Ed. Note. For other cases, see Trade-Marks of the size, weight, and shape of the manufacand Trade-Names, Cent. Dig? $ 78; Dec. Dig. turer's packages, nor from using the represent§ 67.*]
ative colors as wrappers for such packages,
provided the packages are so differentiated in 2. TRADE-MARKS AND TRADE-NAMES (8 70*), general appearance from the manufacturer's A manufacturer of bakery products, which packages that they will not deceive
. adopted as its trade-mark a seal known in the
[Ed. Note.-For other cases, see Trade Marks trade as "In-er-Seal," which seal was placed on
and Trade-Names, Cent. Dig. $$ 110, 111; Dec. each end of paper cartons containing its prod- Dig. $ 97.*] ucts, and had become an identifying mark of its products, thereby acquired the right to the Suit by the National Biscuit Company exclusive use of the seal, and a rival manufactur- against the Pacific Coast Biscuit Company er would be restrained from subsequently adopting a seal of similar general appearance, and and others, to restrain unfair competition. similarly placed on its cartons, so as to mis- On final hearing on pleadings and proofs. lead the purchasing public.
Decree for complainant. [Ed. Note. For other cases, see Trade Marks and Trade-Names, Cent. Dig. § 81; Dec. Dig.
Vredenburgh, Wall & Carey, of Jersey § 70.*]
City, Charles K. Offield, of Chicago, Ill., and 3. TRADE-MARKS AND TRADE-NAMES (8 70*)– Earl D. Babst, of New York City, for comUNFAIR COMPETITION--ELEMENTS.
plainant. Collins & Corbin, of Jersey City, A manufacturer of bakery products, which and William D. Fenton, of Portland, Or., for adopted the word "Uneeda" displayed on paper cartons containing its product and so advertised
defendants. its business as to make the name identify its product, thereby acquired the exclusive use of WALKER, Ch. The object of this bill is the word as applied to its product, and a rival to restrain unfair competition in trade. could not use on its product the word “Abetta" displayed on its cartons, and thereby confuse
The complainant and defendant companies the purchasing public.
are corporations organized under the laws of [Ed. Note.-For other cases, see Trade-Marks this state. Both are engaged in the same and Trade-Names, Cent. Dig. 8 81; Dec. Dig. S line of trade-the manufacture and sale of 70.*]
bakery products. The business of the defend4. TRADE-MARKS AND TRADE-NAMES (8 75*)- ant company is confined to the Pacific Coast UNFAIR COMPETITION-ELEMENTS.
A manufacturer suing to restrain unfair states and adjacent territory, while the field competition need not show intentional fraud, or of activity of the complainant company is
*For other cases
ee same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Se
nation-wide. The complainant's career com- authorities will be profitless. The underlymenced in 1898, when it acquired some of ing principle that no man has a right to the leading bakery plants in the country, palm off his wares as those of another, therewith which it began operations. It already by cheating the purchasing public and filchhad a market for its goods, brought to it ing the business of a rival, is so essentially by these plants, and, by the exercise of aan element of natural justice and so solidly superior order of scientific and mechanical imbedded in our jurisprudence that all that intelligence and of commercial acumen and is necessary to quicken a court of equity is industry, acquired a wide and enviable repu- to show that in the particular instance the tation for the high quality of its products. offense has been committed. The cases cited A market for these wares was established by counsel in their briefs exemplify the ilin the defendant's territory shortly after the limitable conditions and circumstances under complainant started business in 1898. which this simple doctrine, requiring men to
The principal innovation made in the bak- be honest towards each other, may be inery line by the complainant is that of voked. housing and transmitting to the ultimate The case of Wirtz v. Eagle Bottling Co., 50 consumer bakery products with a minimum N. J. Eq. 164, 24 Atl. 658, is a striking exof deterioration, and practically as they ample of the adaptation of the principle to leave the ovens. This is accomplished by the unfair competition in the use of imitative use of paper cartons. Up to the complain- labels and wrappers. The opinion in that ant's advent, shipments were mainly in case so fully covers the whole scope of the "bulk”; that is, in barrels and wooden box- law applicable to the facts presently to be es. Paper cartons, of the shoe-box style, with considered, and furnishes so clear a guide, loose paper lining, and hermetically sealed that I am persuaded to quote from it in extin boxes, were also used, but only to a very tenso. The complainant in that case, by his limited extent. The tin boxes were com- industry and fair dealing, had built up a mercially too costly, and the shipment in large and valuable trade as a bottler of beer bulk was objectionable because of the tend- and identified his goods by a peculiar and ency of the contents to absorb moisture and distinctive label, which label the defendant deleterious and offensive odors, and to break- substantially copied. Vice Chancellor Van age. Uncleanliness in the handling by the Fleet, in granting a preliminary injunction, retailer was also to be reckoned with.
subsequently made perpetual, at page 166 of The paper cartons adopted by the com- 50 N. J. Eq., and at page 659 of 24 Atl., said: plainant were much smaller than those there "If we speak with accuracy, these labels cantofore used and were of a size to permit of not be called trade-marks, but they serve subsales at popular prices—five and ten cents marks by which the complainant's goods are
stantially the same purpose. They are the per package. These cartons are constructed distinguished in the market from all like goods by superimposing upon the carton blank, put upon the market by other persons, and made of cardboard, a sheet of wax paper of are, for that reason, according to many decithe size and shape of the blank, which, when sions, just as much under the protection of the folded, form a unit box, and, it is said, pos- for the same reasons and in precisely the same sess the quality and capacity of preserving way that it does trade-marks. The leading the contents equal to the hermetically sealed principle of the law on this subject is that no tin box. The cartons are of various sizes man should be permitted to sell his goods on
the reputation which another dealer has esand shapes, adapted to the forms of the pro- tablished in the market for his goods, and this posed contents; and to identify the contents principle applies with equal force to the case as its products, and to distinguish the same where the goods of such other dealer are known from those of other dealers, the complainant where they are known by a mark which is strict
by a it to the adopted a trade-mark and a variety of trade-ly a trade-mark. No dealer can lawfully adopt names for its various products and peculiar the label of another dealer, or one so near like and distinctive labels and wrappers to en- it as to lead the public to suppose that the ar
ticle to which it is affixed was put upon the velope the cartons, all of which, it is claim-market by such other dealer. Miller Tobacco ed, the defendant fraudulently simulated, to Manufactory v. Commerce, 45 N. J. Law, 18, 24 the injury and damage of the complainant's [46 Am. Rep. 750]. The reasons upon which trade.
this rule rests were stated by Mr. Justice
Knapp, in the case just cited, substantially as The alleged infringement of 15 widely dif- follows: While the markets are open and free ferent styles of cartons and carton wrappers to all, and fair competition should be encouragand applied trade-names, for as many kinds ed, still every dealer must be required, for the of crackers or biscuits, the methods of con- dealing, to depend for his success upon his own
protection of the public and to promote fair struction of the carton and of the form of reputation and the quality of his own producbundle package of assembled cartons, as well tions.
tions. If he were allowed to deal under false as the trade-mark, is involved in this litiga- colors and sell his productions for those of
1 , tion.
only cheat the public, but also defraud him  The law relating to fraudulent or un- whose right place in the market he filled with fair competition between traders is so firmly spurious goods. Such competition would not established and has been so lucidly illustrat- be fair competition; it would be closer akin to
piracy. * ed and defined by the courts of England and
“The defendant's labels were prepared under of this country that extended citation of the direction of its general manager.
He further says that, in designing the defend- amount of money in lavish, but judicious, adant's labels, he had 'no purpose or design of vertisement, they became known to almost palming off the defendant's goods for those of the complainant. Admitting all this to be true,
every man, woman, and child in this counit is manifest it constitutes no defense. The try as the identifying mark and name of the vital question in cases of this kind is not, what complainant's goods. I quite agree with the did the defendant mean? but what has he done? statement of one of the witnesses, who testiThe legal quality of an act, resulting in injury, must be decided, not by the motive with which fied that: it was done, but by the consequences which have “Uneeda Biscuit and the In-er-Seal, it may necessarily resulted from it. The law, in civil be said, are woven into the fabric of the Nacases, does not attempt to penetrate the secret tional Biscuit Company.
tional Biscuit Company. In fact, they are the motive which induced the act brought in judg- business.
business. As to their value, they are probably ment, but judges of its legal quality solely by worth millions of dollars to the National Bisthe consequences which have actually and neces cuit Company. Its physical properties, such as sarily proceeded from it. It is no less a dic- plants, machinery, and so forth, if destroyed, tate of justice than of sound reason that every could be replaced within a reasonably short person must be understood to have intended to time, while the loss of the In-er-Seal and do just what is the natural consequence of his Uneeda Biscuit and the good will that goes with act deliberately done, * for it is a mat- them would be, if not irretrievable, at least a ter of common knowledge that the ordinary buy- very great calamity.” er does not, as a general rule, exercise as much caution in buying an article for which he pays
The defendant, the Pacific Coast Biscuit a few pennies as he does in purchasing a more Company, succeeded to the business of the valuable thing. The instances are very rare, I Portland Cracker Company in 1899. The latsuppose, where a purchaser exercises as much care in buying a bottle of beer as he does in ter named company had been engaged in the buying a bottle of whisky, a box of cigars, or a cracker baking business at Portland, Or., hat or a coat.
since 1886, and in the carrying on of its 66* * Where, as in this case, the subject- business used a variety of labels, some dematter of the controversy is labels, and the question is whether one is a fraudulent
simula scriptive of the package contents and others tion of the other, the decision must always, to a to identify its various kinds of cracker and large extent, be controlled by the evidence fur- biscuit output, and to mark them as the nished by the labels themselves. As a general product of that company, but none that bore rule, they constitute the very best evidence of which the case is susceptible. That is the case any resemblance to the "In-er-seal,” the label here. A comparison of these labels, whether of the complainant; none square in shape, made singly or in a group, shows conclusively, with clipped corners, a red field with white as I think, that the use of the defendant's la- marking and applied to either end of paper bels constitutes a plain violation of the complainant's right. It is difficult to believe that cartons of the dimensions of those of the one set of labels could have been made so near complainant. When the defendant bought an exact copy, in all their special characteris- the property of the Portland Cracker Comtics, of another set without an effort at simula- pany, it took over these seals and for a time tion."
used them, substituting only its name for  In 1900 the complainant, the National that of its predecessor, until about the year Biscuit Company adopted as its trade-mark 1903, when they were practically discarded, a sign or symbol known in the trade as the and a seal known as "Gold Coast End Seal” "In-er-Seal" or "In-er-Seal Trade-Mark.'
was adopted, which was also far unlike the This seal is square, and of a peculiar shade complainant's “In-er-Seal.” In 1907 this one of red, with clipped corners and white lines was also abandoned, and red-end seal, termed thereon forming an ellipse, divided equally “Swastika Red-End Seal,” with clipped corby a horizontal line, from which extends a ners and white line markings upon a backperpendicular line halving the upper half of ground of red of exactly the same shade as the ellipse, with two horizontal lines cross the complainant's seal, and which is the ining the perpendicular line above the ellipse. fringing seal complained of, was substituted. This configuration of white lines on the seal It is described in the record as a symbol of is said to have been the sign and mark of prehistoric origin, emblematic of a beneficent the first printers in the early period of that Deity, eternal life, benediction and blessing, art, taken by them from the Catholic Church, good wishes and good augury, and was and and by the latter from Paganism, and signi- is used by Indian basket makers and blanket fies the triumph of the spiritual over the weavers, potters, and silversmiths, and is material world. These seals were placed known as the Navajo Indian cross, and was upon each end of all the paper cartons con- well known and in use as a religious emblem taining the bakery products placed on the in India 15 centuries before the Christian era. market by the complainant, and, in addition Like the complainant's "In-er-Seal,” it is beto the purpose they serve in sealing the car. ing used by the defendant on both ends of tons, are an attractive and conspicuous fea- paper cartons of identically the same size ture of the carton wrapper.
and shape as the complainant's cartons. The The initial trade-name coined and applied two labels, the "In-er-Seal" and the "Swastiby the complainant to an important part of ka," differ only in their markings. Laid side its cracker output is "Uneeda” or “Uneeda by side, and disassociated from the cartons, Biscuit.” The association of the "In-er-Seal" the resemblance is not marked; but when the trade-mark and the name “Uneeda Biscuit” | defendant's seals are applied to the end of formed the slogan of the complainant's busi- cartons resembling, as to size, shape, wrapper ness. By the expenditure of a stupendous application, and euphony of coined names,
the similitude is striking, and when thus as | by the defendant of similar and graduating, sociated is of a character calculated to mis- but less offensive, infringing cartons, and the lead and deceive the unwary and unsuspect-obvious purpose of creating the impression of ing purchaser.
an alliance between the two biscuits, and of The federal courts have had occasion, by superiority in that of “Abetta” (a better than injunction, to protect this complainant in Uneeda), evinces that the selection by the its seal and seal application against an in- defendant of the word “Abetta” was intended fringing seal, under circumstances much like to bring to it profit from a confused purchasthose present in this case. Ohio Baking Co. ing public. v. National Biscuit Co., 127 Fed. 116, 62 C. 3. Complainant's “Nabisco"; Defendant's C. A. 116; National Biscuit Co. v. Swick (C. “Parfait” and “Fiesta.” The word "NabisC.) 121 Fed. 1007.
co" is made up practically of the initial The claim of the defendant that it and its syllable of each of the
of the words “Nationpredecessor, the Portland Cracker Company, al Biscuit Company.” Both packages are of used a red-end seal, square in outline with tin. The contents of each is a sweet cracker. clipped corners, upon the end of cartons, to The color scheme of the wrappers is the denote its wares, prior to the adoption by same. It is of a white background, with red the complainant of its In-er-Seal, is not sus- and gold decorations, clearly a case of copytained by the testimony. Moreover, the red- ing. end seals which were used by the defendant 4. Complainant's “Social Tea Biscuit”; were, as I have already stated, discarded for Defendant's “Elite Biscuit.” There is a prothe "gold coast seal" in 1903.
nounced resemblance in the decorations and Inspection and comparison of the cartons appearance of these two packages. “Social" of the complainant and defendant, of the and “Elite" convey the same impression, and nomenclature and wrapper embellishment, the substitution of the latter for the former and of the red-end seal application, are suf- on the defendant's cartons evinces but a ficient to satisfy me of the copying by the single motive-confusion. defendant of the complainant's trade-name 5. Complainant's "Uneeda Milk Biscuit" ; and carton and carton wrappers. I cannot Defendant's “Abetta Milk Biscuit." These conveniently deal with the cartons collective- are as nearly alike as “two peas in a pod.” ly, nor will it be possible, within the limits The answer of the defendant respecting its of these conclusions, to advert in detail to all carton and its statement that it has stopped of the points of similarity between the two making it impliedly confesses copying. sets of cartons, to which my attention has 6. Complainant's "Oysterettes"; Defendbeen called, and therefore reference will only ant's "Toke Point Oysterettes." This word be made to the prominent features.
“oysterettes” was coined by the complainant Generally, as to size, shape, and capacity and applied to a particular brand of its (and the 15 cartons of the complainant dif- crackers, in the year 1901. The word is infer in these respects), it may be said that the dicative of the contents of the cartons. Up defendant's cartons are exact and substantial to 1909 the complainant bad marketed some counterparts of the complainant's. The red- 50,000,000 of these carton contents, under this end seal on both ends of the infringing car-trade-name, and, on the Pacific Coast, in extons, and the superimposed wax-paper in- cess of a million. The claim of the defendterior, are also uniform points of likeness. ant that its predecessor originated and apThe resemblances in other respects, submitted plied this name to a brand of its goods prior by the complainant, I will take up in the or- to the adoption by the complainant is not der in which the infringements are charged in borne out by the testimony. The prominent the bill.
eye object on the carton is, of course, the 1. This relates to the red-end seal already word "Oysterettes.” The defendant's "Toke disposed of.
Point” is printed with type comparatively  2. Complainant's "Uneeda"; Defend- obscure. The boxes are of the same size. ant's "Abetta” Biscuit. The wrappers of the 7. Complainant's "Fig Newtons"; Defendtwo cartons to which these words are ap- ant's "Fig Sultana.” The copying here is plied are of a dark body color, with white manifest. The body color of the wrapper parallelogram decorations. The style of type in each carton in white, with gold scroll work and the location of the display of the name embellishments and red-end seal. Obviously of the biscuit and of the reading matter is the defendant's carton is an imitation. the same, and the latter conveys the same 8. Complainant's and Defendant's meaning. That the complainant is entitled to "Marshmallow Dainties." The complainant the exclusive use of this coined word, as ap- was the first to originate and apply this plied to crackers or biscuits, seems to me to trade-name to one of its carton bakery prodbe beyond question, and this extends to any ucts. This was in 1905. Up to the time of word similarly applied, which rings with the the taking of the testimony in 1909, it had same tone. “Abetta" was coined by the de- sold under this name some 5,000,000 of these fendant with knowledge of the use and ap- carton contents. The exact trade-name has plication by the complainant of the suggestive been appropriated by the defendant, and is name "Uneeda.” This, coupled with the cir- the subject of complaint. cumstances of two consecutive abandonments 9. Complainants “Zu Zu”; Defendant's
"Hoo Hoo" Gingersnaps. "Zu Zu" and "H00, fendant's in dim type and small print, apparHoo" are merely catch words, with the same ently intended not to be readily observed, is general sound when spoken, and not widely the word "Abetta." different to the
the nondiscriminating when 16. Complainant's and Defendant's “Aniprinted. The words, respectively, on the two mal Box." These seem to be counterparts, cartons have the same general appearance, even to the cord handle. Here the copying and with the box arrangement and red-end is complete. seals show similarity, and leave the impres The history, as disclosed by the voluminous sion that imitation was intended. "Zu Zu," record, of the progressive steps of the defendas a trade-name, was adopted by the com- ant in the work of seal imitation, which cul• plainant in 1901, ,and applied to gingersnaps. minated in the adoption of the "Swastika" The sale of these cartons to June, 1909, was seal, read in connection with the history reapproximately 100,000,000, and over a million lating to the constant advance in copying, in the Pacific Coast states. The defendant and the gradual approach by the defendant claims the right to the use of “Hoo Hoo” be- in the use of cartons and wrappers, in apcause of prior appropriation by its predeces- pearance like those of the complainant, consor. The record does not satisfy me that this vinces me that the “Swastika” red-end seal contention is well founded.
was fashioned and applied by the defendant 10. Complainant's "Frotana"; Defendant's to the ends of its cartons, and that these
”; “Maritani" Fruit Biscuit. Similarity of size cartons and wrappers and trade-names, so of cartons, of wrapper coloring, of red enter- much like those of the complainant, were ing largely into the decorations, the red-end simulated by the defendant for no other purseal application, the fruit biscuit contents, pose than to mislead the public into purchasand the confusion between the two names ing its goods for those of the complainant, as to pronunciation of their ending syllables, and thus to purloin the complainant's busitaken as a whole, evidence copying.
ness. I cannot escape this conclusion. 11. Complainant's and Defendant's “Co The Portland Cracker Company and the coanut Dainties.” This term was originated defendant built up a cracker trade, with by the complainant as a mark for one of its seals of a distinctive type, the more promiproducts. The trade name has been copied. nent and generally used one of which was a Both cartons are of the same size. The gen- red seal with a boy sitting on a cracker box, eral arrangement of the lettering, the light apparently exhibiting a cracker in each hand, color of the two boxes, and the red-end seal, dividing the words "Our Brand." The deall tend towards confusion.
fendant also created its own style of cartons 12. Complainant's "Old Time Sugar Cook- and wrappers to individualize and distinies”; Defendant's "Old Fashioned Sugar guish its output. After the complainant enCookies.” The only change made by the de- tered the industry and introduced its novel fendant in appropriating this trade-name is and successful methods, a campaign of simthe substitution of the word “Fashioned” for ulation upon the part of the defendant began. the word “Time,” both of which, in connec- Seals were abandoned and cartons and carton tion with the remainder of the name, have wrappers of the defendant's selection and the same significance. The same size and origin were from time to time discarded and shape of the carton, of the white colored eventually replaced by those the subject of wrappers, and the application of the red-end this suit. The deadly parallel between the seal complete the likeness.
entire line of the complainant's and defend13. Complainant's “Celebrated Zwieback"; ant's seals, cartons, carton wrappers, and Defendant's “Genuine Zwieback." These trade-names is so conspicuous that it repackages are approximately of the same size quires no great perspicuity to observe that and shape. The German and English printed the defendant's present methods of displaying matter bears comparatively the same appear- and vending its wares are not attributable ance and meaning. Aside from this and the to any desire on its part to honestly build up red-end seal application, there does not ap- a trade of its own, but rather that they are pear to be other similarity.
the culmination of a premeditated and single 14. Complainant's "Fancy Assortment”; purpose of dealing under the cover of the Defendant's "Fancy Assorted Cakes.” The good will of a successful rival. size and dress of these cartons have a single
 It is unnecessary in these passing-off eye appearance. The term, applied to the cases to find intentional fraud or that it be defendant's, carries with it the same meaning shown that any one has been actually deceivas that adopted by the complainant. The ed, to entitle a complainant to protection. decorations as to red border lines are at: It need not appear that there is precise copytracting similarities.
ing of any one of the cartons of the com15. Complainant's "Oatmeal Crackers”; plainant. In Ball v. Siegel, 116 Ill. 137, 4 Defendant's “Abetta Oatmeal Crackers." N. E. 667, 56 Am. Rep. 766, it was said: Both wrappers are green.
The shade of the "It is true that in cases of this kind, as a gendefendant's varies slightly from that of the eral rule, exact similitude is not required to complainant's. The prominent sight object complaining party to protection; but if the
constitute an infringement, or to entitle the on both is “oatmeal crackers.” On the de- form, marks, contents, words, or other special